Boyd v. Lee

Full title: KENNETH LEE BOYD, Petitioner, v. R.C. LEE, Warden, Central Prison…

Court: United States District Court, M.D. North Carolina

Date published: Jul 23, 2003

1:00CV00647 (M.D.N.C. Jul. 23, 2003)

Opinion

1:00CV00647

July 23, 2003

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

PAUL TREVOR SHARP, Magistrate Judge

Petitioner Kenneth Lee Boyd, a North Carolina death row inmate, filed this habeas corpus action pursuant to 28 U.S.C. § 2254, challenging his 1994 state court convictions for two counts of first-degree murder. Boyd was convicted of murdering his estranged wife, Julie Curry Boyd, and her father, Thomas Dillard Curry. The jury recommended a sentence of death on each conviction and the judge imposed two death sentences. Petitioner seeks a writ of habeas corpus discharging him from his confinement and restraint, setting aside his convictions, and relieving him of his sentences of death. Petitioner Boyd is represented by attorneys Robert N. Hunter, Jr. and Richard M. Greene. Respondent R.C. Lee of Central Prison ("the State") is represented by the North Carolina Attorney General, with special deputy A. Danielle Marquis appearing.

THE STATE COURT PROCEEDINGS

Petitioner Boyd was convicted of two counts of first-degree murder at the October 17, 1988 Criminal Session of the Superior Court of Rockingham County, North Carolina. On Petitioner's direct appeal, the Supreme Court of North Carolina set aside the convictions and ordered a new trial due to legal error of the trial judge in conducting unrecorded, private bench conferences with prospective jurors during jury selection.

Petitioner was tried a second time at the June 13, 1994 Rockingham Criminal Session. On July 7, 1994, Petitioner was convicted of two first-degree murders and sentenced to death for each murder. Petitioner's convictions and sentences were affirmed by the Supreme Court of North Carolina on August 20, 1996. See State v. Boyd, 343 N.C. 699 (1996). The Supreme Court of the United States denied Petitioner's request for certiorari review on January 21, 1997. See Boyd v. North Carolina, 519 U.S. 1096 (1997).

On November 23, 1997, Petitioner filed a Motion for Appropriate Relief ("MAR") in Rockingham County Superior Court and, thereafter, an amendment to the Motion for Appropriate Relief ("AMAR"). Petitioner's amended motion was denied on August 6, 1999, without an evidentiary hearing. On June 15, 2000, the Supreme Court of North Carolina denied Petitioner's Petition for Writ of Certiorari. On August 10, 2000, Petitioner filed an Application for a State Writ of Habeas Corpus in Guilford County Superior Court. On August 10, 2000, the court denied the application. The North Carolina Supreme Court denied certiorari review on March 1, 2001.

On August 9, 2000, Petitioner filed his Petition for Writ of Habeas Corpus with this Court. On January 8, 2001, Respondent filed an Answer and a Motion to Dismiss for Procedural Default. The parties have briefed their positions and the Petition is now ready for a ruling. See Rule 8(a), Rules Governing § 2254 Cases.

THE CLAIMS OF THE HABEAS CORPUS PETITION

Petitioner Boyd presents the following seventeen claims in his habeas petition:

I. Petitioner's indictments were constitutionally defective in that they:

A. failed to allege sufficient facts or failed to allege the elements of the crime of which he was tried and convicted in violation of Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment Rights to due process and adequate notice.

B. were vague, ambiguous and unclear as to what crimes the grand jury had charged Petitioner with committing.

C. gave insufficient notice of the crime of assault with a deadly weapon with intent to kill, and because Petitioner was not indicted for that crime independently the trial court lacked jurisdiction to submit this crime as an aggravating circumstance.

II. Trial counsel were ineffective when they:

A. advised Petitioner to waive his federal constitutional right to challenge the grand jury, grand jury foreman and petit jury on the basis of racial discrimination in return for individual voir dire.

B. failed to object to the prosecutor's systematic exclusion of members of a cognizable group in violation of the state constitution and the equal protection clause, and failed to make an adequate record of the prosecutor's actions.

III. The State's failure to comply fully with its Ake obligations violated Petitioner's due process rights.

IV. Trial counsel's failure to immediately assert, secure and protect Petitioner's Ake rights to an independent mental health expert prejudiced Petitioner's right to a fundamentally fair trial and constituted ineffective assistance of counsel.

V. Petitioner's Sixth Amendment right to effective assistance of counsel and Petitioner's Fifth and Fourteenth Amendment rights against self-incrimination were violated as a result of the excessive scope of the psychiatric evaluation conducted at Dorothea Dix Hospital.

VI. The state court committed constitutional error by denying Petitioner the right to rehabilitate potential jurors challenged by the State during voir dire for their opinion concerning the death penalty, in violation of Petitioner's rights guaranteed by the Sixth, Eighth and Fourteenth Amendments.

VII. The ineffective assistance of trial counsel severely prejudiced Petitioner and violated his Sixth and Fourteenth Amendment rights in the following respects:

A. trial counsel failed to present, in a competent manner, readily available evidence of voluntary intoxication during both the guilt/innocence and sentencing phases of the trial.

B. at both the guilt/innocence and sentencing phases, trial counsel failed to investigate adequately and present evidence concerning Petitioner's "post traumatic stress disorder."

C. trial counsel failed to seek relief for the violation of Petitioner's right to a speedy trial under the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution.

D. trial counsel, without consent of Petitioner, admitted that Petitioner's conduct was sufficient for the jury to find an aggravating factor.

VIII. The trial court committed error by allowing the prosecutor to make arguments which were calculated to inflame the jury with passion and/or prejudice, including references to the Bible, in violation of Petitioner' s rights guaranteed by the Sixth and Fourteenth Amendments.

IX. North Carolina's sentencing statute as applied to Petitioner violated his due process rights by allowing the jury to consider as aggravating circumstances the same crimes for which Petitioner had just been convicted and an uncharged crime committed during the murders.

X. The trial court erroneously instructed that the jury had a "duty" to recommend the death sentence upon certain findings.

XI. The trial court's instructions erroneously placed the burden of proof of mitigating circumstances upon Petitioner.

XII. The trial court committed constitutional error by refusing to instruct the jury on lack of parole eligibility in violation of Petitioner's rights guaranteed by the Sixth and Fourteenth Amendments.

XIII. Trial counsel were ineffective at the sentencing phase of the trial because they failed to present any evidence of the statutory mitigating factor of Petitioner's lack of significant criminal record.

XIV. Petitioner was denied effective assistance of appellate counsel because appellate counsel failed to pursue certain legal issues on appeal.

XV. The North Carolina Supreme Court's method of proportionality review violated Petitioner's due process rights.

A. The North Carolina Supreme Court violated Petitioner's federal constitutional rights in making its proportionality decision because it considered evidence outside the record and denied Petitioner the opportunity to rebut, deny, or explain.

B. The North Carolina Supreme Court violated Petitioner's federal constitutional rights in making its proportionality decision because the court went outside the record, thus violating the Eighth Amendment right to meaningful appellate review.

XVI. Petitioner was denied due process of law in the disposition of his motion for appropriate relief in that the procedures used were arbitrary and capricious, the judge engaged in ex parte communication with the assistant attorney general handling the case, and Petitioner was not allowed adequate discovery, a pre-hearing conference, or an evidentiary hearing, all of which denied him a full and fair opportunity to present his Motion for Appropriate Relief.

XVII. The findings of fact and conclusions of law contained in the order denying the Motion for Appropriate Relief are not supported by the record, or are inadequately supported by the record, thereby denying Petitioner due process of law.

THE EVIDENCE PRESENTED AT TRIAL

The Supreme Court of North Carolina summarized the evidence presented at Petitioner's trial in 1994 as follows:

[O]n March 4, 1988 defendant entered the home of his estranged wife's father, where his wife and children were then living, and shot and killed both his wife and her father with a .357 Magnum pistol. The shootings were committed in the presence of defendant's children — Chris, age thirteen; Jamie, age twelve; and Daniel, age ten — and other witnesses, all of whom testified for the State. Immediately after the shootings, law enforcement officers were called to the scene. As they approached, defendant came out of some nearby woods with his hands up and surrendered to the officers.

Later, after being advised of his rights, defendant gave a lengthy inculpatory statement in which he described the fatal shootings:

I walked to the back of the door [of Dillard Curry's house] and opened it. It was unlocked. As I walked in, I saw a silhouette that I believe was Dillard. It was just like I was in Vietnam. I pulled the gun out and started shooting. I think I shot Dillard one time and he fell. Then I walked past him and into the kitchen and living room area. The whole time I was pointing and shooting. Then I saw another silhouette that I believe was Julie come out of the bedroom. I shot again, probably several times. Then I reloaded my gun. I dropped the empty shell casings onto the floor. As I reloaded, I heard someone groan, Julie I guess. I turned and aimed, shooting again. My only thoughts were to shoot my way out of the house. I kept pointing and shooting at anything that moved. I went back out the same door that I came in, and I saw a big guy pointing a gun at me. I think this was Craig Curry, Julie's brother. I shot at him three or four times as I was running towards the woods.

Dr. Patricio Lara and Dr. John Warren both testified for defendant as experts in forensic psychology. Dr. Lara testified that at the time of the offenses, defendant suffered from an adjustment disorder with psychotic emotional features, alcohol abuse, and a personality disorder with predominate compulsive dependent features. Further, Dr. Lara opined that defendant's emotional condition was impaired and that defendant suffered from some level of alcohol intoxication at the time of the offenses. Likewise, Dr. Warren opined that at the time of the offenses defendant suffered from chronic depression, alcohol abuse disorder, dependent personality disorder, and a reading disability.

State v. Boyd, 343 N.C. 699, 707-08 (1996). A more detailed summary of the evidence appears in the Order of the MAR court. See Respondent's Answer, Ex. A, Tab 5, MAR Order at 7-18.

Petitioner was represented during the 1994 trial by attorneys Samuel J. Ervin, IV, and J. Donald Cowan, Jr.

THE HABEAS CORPUS STANDARD OF REVIEW

The Supreme Court of the United States has recently clarified the habeas corpus standard of review:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas corpus court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring).

Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Id. at 411.

DISCUSSION

The Court will discuss Petitioner's claims in the order of their presentation in the Petition.

CLAIM I

Petitioner Boyd's Claim I is that the indictments charging him with murder were constitutionally defective, resulting in a lack of jurisdiction by the trial court to enter judgment against him.

Petitioner raised this claim in his Application for a State Writ of Habeas Corpus but the state Superior Court rejected the claim as meritless. Thereafter, Petitioner raised this claim in his Petition for Writ of Certiorari to the Supreme Court of North Carolina. The Petition was denied. A. Petitioner's claim that the indictments charging him with murder are constitutionally defective in failing to charge every element of capital murder.

Petitioner's Claim I(A) is that the short-form indictment on which he was charged is unconstitutional in that it fails to specifically allege the distinctive elements of first-degree murder or to allege the aggravating circumstances on which the State would rely for the imposition of the death penalty. The North Carolina Supreme Court has rejected this precise legal argument in State v. Wallace, 351 N.C. 481, 508 (holding that the United States Supreme Court has never "applied the Due Process Clause of the Fourteenth Amendment in a manner which requires that a state indictment for a state offense must contain each element and fact which might increase the maximum punishment for the crime charged."), cert. denied, 531 U.S. 1018 (2000).

Petitioner asserts that the North Carolina Supreme Court's ruling on this issue ignores the mandate set forth by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) (Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt). The North Carolina Supreme Court has, however, analyzed the effect of both Apprendi and Jones v. United States, 526 U.S. 227 (1999) upon North Carolina's standard short-form murder indictment. The Court concluded that an indictment which complies with N.C. Gen. Stat. § 15-144 meets the constitutional requirement of due process and notice and will support both a conviction for first — and second-degree murder. See State v. Braxton, 352 N.C. 158, 173-75 (2000) (the short-form indictment alleging murder in violation of the first-degree murder statute complied with the due process clause and was constitutional, even though it failed to allege premeditation, deliberation, and specific intent to kill), cert. denied, 531 U.S. 1130(2001); Wallace, 351 N.C. at 481 ( Apprendi and Jones do not invalidate North Carolina's "short-form" murder indictment). The North Carolina Supreme Court wrote in Braxton:

The crime of first-degree murder and the accompanying maximum penalty of death, as set forth in N.C.G.S. § 14-17 and North Carolina's capital sentencing statute, are encompassed within the language of the short-form indictment. We, therefore, conclude that premeditation and deliberation need not be separately alleged in the short-form indictment. Further, the punishment to which defendant was sentenced, namely, the death penalty, is the prescribed statutory maximum punishment for first-degree murder in North Carolina. Thus, no additional facts needed to be charged in the indictment. Given the foregoing, defendant had notice that he was charged with first-degree murder and that the maximum penalty to which he could be subjected was death. Moreover, under the law of this State, whenever a defendant is charged with murder, questions of fact related to guilt or innocence and to capital sentencing must be determined by the jury; and the State has the burden of proving all elements of the crime and aggravating circumstances beyond a reasonable doubt. Nothing in Apprendi, in our judgment, alters this prior case law. Accordingly, we overrule this assignment of error.

Braxton, 352 N.C. at 175. The North Carolina Supreme Court recently reaffirmed its reasoning on this issue in State v. Hunt, __ N.C. __, No. 5A86-8, 2003 WL 21657380 (N.C. July 16, 2003).

Moreover, Apprendi and Jones are not retroactive and do not apply to cases on collateral review such as the proceeding now before the Court. See United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir.), cert. denied, 534 U.S. 1032 (2001). Further, any claim that the trial court in Petitioner's case lacked jurisdiction due to defective indictments is foreclosed by United States v. Cotton, 535 U.S. 625 (2002) (defects in indictment do not deprive court of power to adjudicate case).

The state court's determination of this claim is not contrary to and does not involve an unreasonable application of clearly established United States Supreme Court law. Petitioner has failed to carry his burden under 28 U.S.C. § 2254(d). B. Petitioner's claim that the indictments charging him with capital murder are unconstitutionally vague, indefinite, and ambiguous such that the indictments failed to give sufficient notice of the crimes charged.

Petitioner's argument that the indictments against him were vague, indefinite, and ambiguous because they did not indicate whether the grand jury indicted Petitioner for first — or second-degree murder is equally unpersuasive. A criminal pleading must contain: "[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation." N.C. Gen. Stat. § 15A-924(a)(5).

A federal constitutional attack on the indictments against Petitioner is meritless. While constitutional due process requires adequate notice, the Fourth Circuit has held that it is not unreasonable for the North Carolina courts to conclude, as here, that North Carolina's standard short-form indictment for murder gives sufficient notice to capital defendants. See Hartman v. Lee, 283 F.3d 190, 194-200 (4th Cir. 2002), cert. denied, 123 S.Ct. 851 (2003).

This Court finds that the state court's conclusion that Petitioner's Claim I(B) is meritless is not contrary to and does not involve an unreasonable application of United States Supreme Court precedent. Petitioner is not entitled to relief.

C. Petitioner's claim that his capital murder indictments unconstitutionally failed to give notice of an aggravating circumstance, charged a violent crime for which he had not been indicted, and left the trial court without jurisdiction to impose judgment upon him.

Petitioner claims that he did not receive pretrial notice through indictments or otherwise of the aggravating circumstances that would make him eligible for the death penalty. Petitioner acknowledges that the North Carolina Supreme Court determined this claim against him during his direct appeal. Boyd, 343 N.C. at 720-21.

Petitioner claims that he is "innocent of the death penalty" because the State relied upon unindicted crimes as aggravating circumstances to his first-degree murder convictions. The jury found on the evidence that Petitioner committed each murder during a violent course of conduct in accord with N.C. Gen. Stat. § 15A-2000(e). See Boyd, 343 N.C. at 715. Under state law, a defendant does not need to be charged or convicted of the "other crimes of violence" before the aggravating circumstance can be submitted. Id. at 720. Further, the North Carolina Supreme Court determined the evidence in Petitioner' s case to be "sufficient to support its submission [of the (e)(11) aggravating circumstances] to the jury." Id. at 719.

Petitioner claims that the Constitution requires that an indictment for capital murder specify the aggravating factors upon which the State will rely on at trial. Nonetheless, the North Carolina courts have held that an indictment in a capital case need not identify specific aggravating circumstances. See State v. Hill, 331 N.C. 387 (1992); State v. Holden, 321 N.C. 125 (1987) (a trial court may not require the State to declare the aggravating circumstances on which it will rely at the sentencing phase). The eleven aggravators in North Carolina's death penalty statute are sentencing considerations. The aggravators are neither elements of a crime nor separate offenses. See State v. McCarver, 341 N.C. 364, 388-94 (1995). The United States Supreme Court has held that "[a]ggravating circumstances are not separate penalties or offenses, but are `standards to guide the making of [the] choice' between the alternative verdicts of death and life imprisonment." Poland v. Arizona, 476 U.S. 147, 156 (1986) ( quoting Bullington v. Missouri, 451 U.S. 430, 438 (1981)); see also State v. Lawrence, 352 N.C. 1, 9-11 (2000) (murder indictments need not specify specific aggravating circumstances), cert. denied, 531 U.S. 1083 (2001); State v. Hunt, supra.

Under § 2254(d)(1), a writ of habeas corpus may be issued if the state court adjudication resulted in a decision that "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. at 412-13. The state court's conclusion that Petitioner's claim is meritless based upon controlling case law is not contrary to and does not involve an unreasonable application of United States Supreme Court precedent. Moreover, even if Petitioner's indictments were defective in some respect, which has not been shown, such a defect would not deprive the state court of the power to adjudicate the case. See Cotton, 535 U.S. 625 (defects in an indictment do not deprive court of power to adjudicate). The state court did not lack jurisdiction to convict or sentence Petitioner. Therefore, Petitioner has failed to carry his burden under 28 U.S.C. § 2254(d).

CLAIM II

As his second habeas claim, Petitioner contends that his attorneys at his 1994 trial, J. Samuel Ervin, IV and J. Donald Cowan, Jr. were ineffective for failing to challenge the selection of the grand jury foreman on the basis of alleged racial discrimination, and for failing to object to the prosecutor's alleged unconstitutional exclusion of jurors. Petitioner raised this claim in his MAR and the MAR court concluded that the claim was procedurally barred and without merit. Petitioner concedes in this action that Claim II is subject to procedural default. See Pleading No. 22, Ex. A. The state court's alternative adjudication on the merits was based upon the application of the United States Supreme Court test for ineffectiveness of counsel articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984). As explained in Strickland, an ineffective assistance of counsel claim on which Petitioner relies has two components:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive defendant of a fair trial.

Id. at 687. To establish ineffectiveness, a "[Petitioner] must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. To establish prejudice he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "Indeed, it is insufficient to show only that the errors had some conceivable effect on the outcome of the proceeding, because virtually every act or omission of counsel would meet the test." Williams, 529 U.S. at 394; see also Strickland, 466 U.S. at 693. "The petitioner bears the `highly demanding' and `heavy burden' in establishing actual prejudice." Williams, 529 U.S. at 394.

A. Failure to challenge the grand jury foreman selection.

During pretrial proceedings, trial counsel for Petitioner filed a motion to dismiss the indictments against him on the basis of alleged racial discrimination in the selection of the grand jury foreman. At a February 28, 1994 hearing, defense counsel advised Petitioner to withdraw this motion (and a motion for a change of venue) in exchange for the State's agreement that the parties could conduct individual voir dire during jury selection. Petitioner consented to this agreement on the advice of counsel. Petitioner now claims that the advice his attorneys gave on this issue was incompetent.

The MAR court concluded that Petitioner failed to show any evidence of a prima facie case of racial discrimination in the selection of the grand jury foreman and that Petitioner also failed to prove that his attorneys' actions fell "below the range of competence demanded of attorneys in criminal matters." See Respondent's Answer, Ex. A, Tab 5, MAR Order ¶ 221. The MAR court also concluded that Petitioner failed to show what prejudice he could have sustained from his attorneys' withdrawal of the motion to dismiss since the motion was based upon wholly unsupported allegations of discrimination. Petitioner has similarly failed to show this Court any factual basis for a claim of racial discrimination. Nor has he shown why his attorneys' strategic advice on this matter should be second-guessed. Accordingly, Petitioner's Claim E(A) fails.

Additionally, the MAR court found Petitioner's Claim II(A) to be procedurally defaulted. Petitioner fails to show either (1) good cause for excusing the default and actual prejudice resulting therefrom; or (2) that failure to consider this claim will result in a fundamental miscarriage of justice. See Wainwright v. Sykes, 433 U.S. 72 (1977) (a petitioner must demonstrate good cause and actual prejudice due to the default before a federal court may disregard the procedural bar). This claim is barred from federal review by reason of Petitioner's procedural default.

B. Failure to object to the prosecutor's systematic exclusion of members of a cognizable group in violation of the state constitution and the equal protection clause, and to make an adequate record of the prosecutor's actions.

Petitioner complains that during the voir dire examination of individual jurors, the State asked jurors about their religious beliefs. See 1994 Trial tr. at 103, 111, 127, 136, 147-48, 171, 199-200, 204, 210, 219, 242, 259, 270, 280, 319, 350. The transcript shows that the general tenor of the questions asked by the prosecutor is represented by the question, "Do you have any moral, religious objections that would prevent you from considering the death penalty if you sat as a member of the jury?" Id. at 103. Petitioner claims that after eliciting responses, the State used peremptory challenges to excuse jurors in part based upon their responses regarding their religious beliefs in violation of the United States Constitution. Petitioner contends that his trial attorneys did not object to the prosecutor's questions and were incompetent in failing to do so.

The MAR court found this claim to be procedurally barred and also without merit. The court found that Petitioner failed to show a constitutional violation stemming from the State's voir dire questions sufficient to establish any ground upon which Petitioner's trial counsel should have objected. The court held that the State's questions did not violate any of Petitioner's constitutional rights during jury voir dire as articulated in Wainwright v. Witt, 469 U.S. 412 (1985). The court noted that state law provided that where a juror expresses an inability to follow the law based upon a religious opposition to the death penalty, excusal of the juror for cause is appropriate because excusal is not based on the juror's choice of religion but because of the juror's inability to follow the law. See State v. Davis, 325 N.C. 607, 625-26 (1989).

In this action, Petitioner has failed to show that his trial counsel made errors so serious that they were not functioning as "counsel" guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 689. In Wainwright v. Witt, the United States Supreme Court held that a juror was properly struck for cause when the juror indicated that a religious belief against the death penalty would interfere with the juror's ability to judge guilt or innocence in the case. In light of this precedent, Petitioner's counsel cannot have been deficient in failing to object to the prosecutor's questions regarding religious beliefs and their relation to the possible imposition of a death penalty.

This Court cannot find that the MAR court's determination was contrary to or involved an unreasonable application of clearly established federal law. Moreover, Petitioner has shown no basis for overcoming his procedural default of this Claim n(B).

CLAIM III

Petitioner's third habeas corpus claim is that his right to due process of law was violated by the trial court's alleged failure to comply with requirements established in Ake v. Oklahoma, 470 U.S. 68 (1985) (when defendant's sanity is in issue, the State must assure that indigent defendant has access to a competent psychiatrist for evaluation and assistance in the defense). Petitioner argues that he was denied the right to the pretrial psychiatric assistance required by Ake, despite the fact that Dr. Patricio P. Lara, a psychiatrist, was appointed by the trial court to evaluate and assist him before his first trial, and Dr. John Warren, a psychologist, was appointed before the second trial. Dr. Lara evaluated Petitioner's mental health status within a month of the murders in 1992 and thereafter testified on Petitioner's behalf at both his first and second trials. Petitioner contends, however, that a state-employed psychiatrist such as Dr. Lara cannot qualify as the psychiatric assistant contemplated in Ake. The MAR court reviewed this claim and concluded that in accordance with Ake and relevant North Carolina law, Petitioner's right to psychiatric assistance had not been violated by the appointment of Dr. Lara, and even if there were an Ake violation, there was no prejudice to Petitioner in view of the later appointment of a private psychologist, Dr. John Warren, who testified at Petitioner's second trial and gave testimony consistent with that of Dr. Lara. See MAR Order ¶¶ 21-52.

The United States Supreme Court in Ake v. Oklahoma held that when an indigent defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, due process requires that the State provide the defendant with access to a psychiatrist to assist the defense. North Carolina state law provides that an indigent defendant is not "entitled to . . . an independent, privately employed psychiatrist. The appointment of state employed psychiatrists may fulfill the state's constitutional obligation." State v. Gambrell, 318 N.C. 249, 258 (1986).

Dr. Lara was appointed before Petitioner's first trial. Petitioner was convicted, but his conviction was set aside by the North Carolina Supreme Court and a new trial was ordered. Before Petitioner's second trial, the trial court appointed a different psychological expert, Dr. John Warren, a private practitioner. See MAR Order ¶ 37. Dr. Warren, testifying on behalf of Petitioner during the guilt/innocence phase of Petitioner's second trial, stated that "there was a great deal of consistency between Dr. Lara and what his team found and what [Dr. Warren's] team found." 1994 Trial tr. at 2373. Dr. Warren identified a "history of chronic depression," "alcohol abuse disorder," a "dependant personality disorder," a "reading disability," and "two medical diagnoses, the gastrointestinal problem and his headaches of unknown cause." Id. at 2373-76. Dr. Lara, also testifying on behalf of Petitioner during the guilt/innocence phase of Petitioner's second trial, stated that he diagnosed Petitioner with "an adjustment disorder with psychotic emotional features, including both anxiety and depression features, and also a diagnosis of alcohol abuse history and a diagnosis of a personality disorder with predominate compulsive dependant features." Id. at 2414. Dr. Warren's assessment of Petitioner's mental condition was consistent with Dr. Lara's assessment which had been formulated approximately five years earlier.

This Court finds the state court's adjudication of this claim of constitutional error to be reasonable in all respects. Ake does not clearly establish that an indigent defendant is entitled to the appointment of a private mental health expert, as opposed to an expert employed at a state institution. North Carolina law provides that the appointment of a state-employed psychiatrist satisfies Ake. See Gambrell, 318N.C. at 258. Recognition of the specific right Petitioner claims in this action would constitute the creation of a "new rule" of constitutional law, an outcome prohibited during habeas proceedings by league v. Lane, 489 U.S. 288 (1989). In any event, the MAR court's determination that any Ake error was harmless is clearly reasonable. During Petitioner's second trial, a private psychological expert was appointed to assist the defense. Both experts, Dr. Lara and Dr. Warren, testified on Petitioner's behalf at his second trial and gave consistent testimony. Petitioner cannot have been harmed by the appointment in the first instance of a state-employed psychiatrist.

The state court's adjudication of Claim III did not result in a decision contrary to or involving an unreasonable application of clearly established federal law. Additionally, Petitioner has shown no basis for setting aside the procedural bar imposed by the MAR court.

CLAIM IV

In Claim IV, which is related to Claim III, Petitioner asserts that he was deprived of effective assistance of counsel under the Sixth Amendment because his initially appointed trial counsel, J. Michael Thomas and Frederick B. Wilkins, Jr. moved the court to have Petitioner's competency evaluated in accord with N.C. Gen. Stat. § 15A-1002, but did not immediately request the appointment of a private psychological expert to evaluate Petitioner's possible defenses. See MAR Order ¶ 58.

Petitioner's original counsel filed a motion six days following the murders of Julie Curry Boyd and Thomas Dillard Curry to commit Petitioner to Dorothea Dix Hospital for evaluation and examination regarding Petitioner's competency to stand trial. This motion was granted and Dr. Lara, a state-employed psychiatrist, evaluated Petitioner at Dorothea Dix Hospital. Dr. Lara later testified on Petitioner's behalf at the guilt/innocence phase of the first trial as well as the guilt/innocence and sentencing phases of the second trial. See 1988 Trial tr. at 682-711; 1994 Trial tr. at 2411-27; 1994 Sent. tr. at 136-45. Petitioner argues that his evaluation for competency by a state psychiatrist at a state facility permanently tainted both his first and second trial and fundamentally affected his right to a fair trial. See Petition ¶ 177-78. Petitioner argues that trial counsel was ineffective for not requesting a "private psychological expert to evaluate" Petitioner in the first instance. See MAR Order ¶ 58.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that such deficiency prejudiced the defense so as to deprive the defendant of a fair trial whose result was reliable. See Strickland, 466 U.S. at 687. The MAR court found that Petitioner's original trial counsel were not incompetent in failing to immediately request the assistance of a private psychological expert. The decision to request that Petitioner be evaluated at Dorothea Dix Hospital was based upon Mr. Wilkins' prior trial experience that motions for a private examination were routinely denied. See Wilkins Aff. at 2. State law did not require the appointment of a private psychiatrist. See Gambrell, 318 N.C. at 258. Strategic decisions of counsel are presumed reasonable, and the MAR court found that Petitioner had failed to "overcome the presumption that, under the circumstances, the challenged `action might be considered sound trial strategy.'" Strickland, 466 U.S. at 689.

The MAR court found also that Petitioner failed to prove any prejudice resulting from the alleged failure of counsel. In the first place, there was no reasonable likelihood that his original trial counsel would have succeeded on a motion for appointment of a private psychiatric expert since, in fact, the pretrial motion of Petitioner's substitute retained counsel for appointment of a private psychiatric expert, filed before the first trial in 1988, was denied by the trial court.¹ See MAR Order ¶ 83. Moreover, the MAR court concluded that Petitioner failed to show prejudice for the additional reason that even though he was denied the appointment of a private expert prior to his first trial, he was granted the appointment of such an expert, Dr. Warren, prior to his second trial. Dr. Warren testified consistently with Dr. Lara at the second trial. This Court does not find that the MAR court's determination of this issue was contrary to or involved an unreasonable application of Strickland v. Washington. The MAR court's findings regarding lack of prejudice are unassailable on the record set out above. Petitioner's Claim IV is without merit.

1 T. Keith Black and Paul E. Marth became retained counsel for Petitioner on May 20, 1988, replacing the initially appointed attorneys, J. Michael Thomas and Frederick B. Wilkins, Jr.

CLAIM V

Petitioner contends in Claim V that his constitutional rights were violated as a result of the excessive scope of the competency examination prior to his first trial, and that his trial counsel were ineffective for failing to object to the admission of evidence obtained pursuant to the evaluation. The record shows that six days after Petitioner's arrest, trial counsel filed a motion to commit Petitioner to Dorothea Dix Hospital for the purpose of evaluating Petitioner's competency. The trial court granted Petitioner's motion and Dr. Lara was appointed to conduct the evaluation. In state post-conviction proceedings, Petitioner alleged that his trial counsel was "never advised that the scope of the examination would include matters relating to defendant's state of mind at the time of the murders and matters relating to mitigation in the penalty phase of the trial." See Respondent's Answer, Ex. A, Tab 10, Amended MAR at 2. Petitioner did not submit to the MAR court, however, and has not submitted to this Court, any evidence supporting that allegation. Dr. Lara's written evaluation report affirmatively shows that Dr. Lara contacted Petitioner's trial attorneys and discovered that Petitioner's state of mind at the time of the commission of the alleged offenses was considered the most important issue to be addressed. Also, the issues of capital sentencing mitigation were relevant. See Superior Court of Rockingham County Records of State v. Kenneth Lee Boyd (88 CRS 1742; 88 CRS 1743), Dr. Lara's Psychiatric Report of Kenneth Boyd at 3.

Dr. Lara testified on behalf of Petitioner, explaining that his purpose in evaluating Petitioner was "to establish if the defendant was capable of standing trial and also with regard to his condition at the time of the alleged offenses." 1988 Trial tr. at 684. At Petitioner's second trial, both Dr. Lara and Dr. John Warren testified on his behalf, and presented a "mental status" defense. See 1994 Trial tr. at 2363-2427; 1994 Sent. tr. at 10-21, 135-45. Many of the mitigating circumstances submitted for the jury's review in Petitioner's second trial were based on the testimony of the two mental health experts.

The MAR court evaluated this claim pursuant to the standards articulated for ineffective assistance of counsel in Strickland v. Washington, as well as the standards relating to the admission of evidence adduced from mental health evaluations in Estelle v. Smith, 451 U.S. 454 (1981) and Buchanan v. Kentucky, 483 U.S. 402 (1987). In Estelle, the United States Supreme Court concluded that a "criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." Estelle, 451 U.S. at 468 (The government's use of the results of a mental competency examination violates a defendant's Fifth Amendment privilege against self-incrimination only when the trial court sua sponte ordered the competency evaluation when the defendant's counsel did not assert an insanity defense, did not offer any psychiatric evidence at trial, and may not have even been aware beforehand that the court ordered the psychiatric examination.). On the other hand, the United States Supreme Court has concluded that where "a defendant asserts the insanity defense and introduces supporting psychiatric testimony" the prosecution has the right to request that the defendant submit to a sanity evaluation and use the results of such mental examination against him at trial. Id. at 465. The Supreme Court further held that "if a defendant requests [a mental] evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution." Buchanan, 483 U.S. at 422-23 (no constitutional violation in government's use of mental competency evaluation where defendant consented to examination but then objected to use of evidence claiming that he could not have anticipated the scope of the examination or the use of the results from the examination).

The MAR court concluded, based on United States Supreme Court precedent, that Petitioner's constitutional rights were not violated by the scope of the psychiatric examination or by the State's use of the mental competency evaluation he had requested. See MAR Order ¶ 448. Because trial counsel specifically requested that Petitioner undergo a psychological evaluation which included his state of mind at the time of the crime, Petitioner's assertion that his trial counsel could not foresee the scope of the examination is without basis. Additionally, trial counsel was on notice that if mental status was anticipated as a defense, the use of psychological evidence could validly be used by the prosecution in rebuttal. See Buchanan, 483 U.S. at 425.

Petitioner's claim of ineffectiveness of counsel is meritless. Petitioner fails to prove any deficiency of counsel. As shown above, the State was entitled to discovery of the mental examination report which Petitioner's trial counsel requested and the scope of which Petitioner's trial counsel defined. Petitioner presented evidence of his mental status as a defense by calling Dr. Lara and Dr. Warren to testify on his behalf. Thus the State was entitled to cross-examine Dr. Lara and Dr. Warren on the reports prepared following examination of the Petitioner.

Second, Petitioner shows no prejudice resulting from the testimony of Dr. Lara based upon material in his mental examination report. Dr. Lara and Dr. Warren testified consistently and extensively in support of Petitioner's mental status defense at the second trial and proffered mitigating circumstances to Petitioner's crimes. The jury found value in many of the submitted mitigating circumstances which were directly related to the evaluations of Dr. Lara and Dr. Warren. See Issues and Recommendation as to Punishment, Mitigating Circumstances 1, 2, 3, 4, 46, 52, 66, 67, and 69. Petitioner has not shown that he was harmed in any way by the introduction of the evidence in question.

This Court finds that the MAR court applied the appropriate United States Supreme Court law in evaluating Petitioner's Claim V. This Court concludes that the MAR court's adjudication did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. Petitioner's Claim V is without merit.

CLAIM VI

Petitioner's sixth habeas corpus claim is that the trial court violated his constitutional rights by refusing to allow rehabilitation of certain jurors during jury voir dire. The North Carolina Supreme Court reviewed the merits of this claim raised by Petitioner on his direct appeal as a "preservation" issue, and concluded that the merits of the claim were insufficient to compel the court to "depart from [the] prior holdings" of the court. Boyd, 343 N.C. at 723.

In State v. Cummings, 326 N.C. 298, 307 (1990), the North Carolina Supreme Court held that "`[w]hen challenges for cause are supported by prospective jurors' answers to questions propounded by the prosecutor and by the court, the court does not abuse its discretion, at least in the absence of a showing that further questioning by defendant would likely have produced different answers, by refusing to allow the defendant to question the juror challenged.'" The North Carolina Supreme Court has further held that a capital defendant has no constitutional right to rehabilitate jurors challenged for cause by the State because the jurors have stated that they could not impose the death penalty under any circumstances. Id. The option of allowing rehabilitation of jurors has been left to the trial court's sound discretion. Id.

The state court's determination of this claim is not contrary to nor involves an unreasonable application of clearly established United States Supreme Court precedent. The Supreme Court has held that the Sixth and Fourteenth Amendments guarantee the right to trial by an impartial jury and therefore necessarily extend to ensure that jury voir dire does not result in the excusal for cause of jurors whose conscientious objections to capital punishment would not prevent them from impartially applying the law to the facts of the case. See Wainwright v. Win, 469 U.S. at 412; Witherspoon v. Illinois, 391 U.S. 510, 513-14 (1968). However, a trial court's jury selection procedures are not constitutionally mandated but are left to the trial court's discretion. See Coins v. Angelone, 226 F.3d 312, 324 (4th Cir.) (holding "in the absence of `special circumstances' that trigger an accused's constitutional right to inquire into racial prejudice, the `conduct of voir dire [is left] to the sound discretion of state trial judges.'"), cert. denied, 531 U.S. 1046 (2000). The United States Supreme Court has held that a "generalized but thorough inquiry into the impartiality of the veniremen" is constitutionally sufficient. See Ristaino v. Ross, 424 U.S. 589, 598 (1976).

The North Carolina Supreme Court refused to find that Petitioner was constitutionally entitled to attempt to rehabilitate jurors unequivocally shown by their responses to the prosecutor's questions to be disqualified due to their refusal to impose a death sentence under any circumstances. Petitioner has not demonstrated that this ruling was contrary to established federal law. In fact, recognition of an absolute right to attempt such rehabilitation would constitute the creation of a "new rule" of constitutional law during habeas proceedings in contravention of Teague v. Lane, For the reasons stated above, Petitioner's Claim VI is without merit.

CLAIM VII

In Claim VII, Petitioner asserts that his trial attorneys, J. Samuel Ervin, IV and J. Donald Cowan, Jr. were ineffective in not presenting a more-developed voluntary intoxication defense at his second trial; for not investigating and presenting evidence of alleged post traumatic stress disorder; for not seeking relief for alleged violation of the speedy trial act; and for "admitting" the existence of an aggravating circumstance before the jury during final argument at sentencing. The MAR court found this claim to be procedurally barred and also found that Petitioner had not met the burden of showing "good cause" and "actual prejudice" or a "fundamental miscarriage of justice" sufficient to overcome the procedural bar. Alternatively, the MAR court found Petitioner's Claim VII to be without merit. For reasons set forth below, this Court agrees with the MAR court's findings.

A. Failure to Present a Voluntary Intoxication Defense.

Petitioner alleges that he has been denied his Sixth Amendment right to effective representation of counsel by reason of the manner in which the issues of Petitioner's alleged alcoholism and intoxication were presented to the jury at his second trial. Petitioner claims that trial counsel were ineffective for failing to provide the jury with expert testimony regarding the body weight of the Petitioner, the amount of alcohol he consumed, and the loss of control Petitioner would have experienced from his drinking on the day of the crime. See Petition at ¶ 212. Petitioner faults his trial counsel for failing to supply the jury with an approximation of Petitioner's blood-alcohol level and failing to detail Petitioner's history of alcohol abuse. See Respondent's Answer, Ex. A, Tab 2, MAR at 33. Petitioner also claims trial counsel were ineffective for failing to present evidence of Petitioner's "frequent memory lapses . . . which . . . were symptomatic of alcohol-induced blackouts, which are common with alcohol abuse." Id.

Review of the trial record shows that although Petitioner stated that his memory of the events on the evening of the murders was impaired ( See 1994 Trial tr. at 2257), his trial testimony, taken as a whole, was in fact replete with specific, detailed recollections of the events surrounding the murders. 1994 Trial tr. at 2257-59. Moreover, Petitioner gave a statement to Deputy Frank Moore immediately after the killings that contained specific recollections of the evening's events. Id. at 1893. This contemporaneous statement of Petitioner, detailed and vivid, ruled out any reasonable strategy by counsel based on "alcohol-induced blackouts."

Petitioner raised on direct appeal the issue of the trial court's refusal to instruct the jury on voluntary intoxication as a defense to first-degree murder. The North Carolina Supreme Court held that Petitioner had failed to present evidence that he was intoxicated to such an extent that he was unable to form the requisite intent to kill. See Boyd, 343 N.C. at 712-13.

This Court's review of the trial record demonstrates that there is not a reasonable probability of a different result at Petitioner's trial if Petitioner's voluntary intoxication defense had been presented in the fashion now suggested by Petitioner. The main issue at trial, regardless of Petitioner's body weight, his blood-alcohol level, or his history of alcohol abuse, was what effect any amount of intoxication had on Petitioner's ability to premeditate and deliberate an intent to kill Julie Boyd and Dillard Curry. No evidence that Petitioner has suggested to this Court could have affected the jury's verdict in view of Petitioner's own testimony and that of other witnesses which was replete with proof of his premeditation and deliberation in the murders. See MAR court's summary of the evidence, MAR Order at 7-16. Petitioner has failed to prove that trial counsel were either deficient or that he had suffered any prejudice as a result of such alleged deficiency.

B. Failure to Investigate and Present Evidence of Post-Traumatic Stress Disorder.

In Claim VII(B) Petitioner alleges that trial counsel were ineffective for failing to "investigate and present appropriate evidence to the jury" of post-traumatic stress disorder during the guilt/innocence phase of his trial in order to establish his alleged lack of ability to premeditate and deliberate an intent to kill. The MAR court found that Petitioner's claim was without merit.

In order to prove ineffectiveness of counsel, Petitioner must show both a deficiency of counsel and that such deficiency so prejudiced the defense so as to deprive the defendant of a fair trial whose result was reliable. See Strickland, 466 U.S. at 687. The Sixth Amendment right to effective assistance of counsel does not extend to the effective "assistance of an expert witness." See Pruett v. Thompson, 996 F.2d 1560, 1573, n. 12 (4th Cir. 1993). Petitioner was evaluated by two mental health experts, Dr. Lara and Dr. Warren, who testified on his behalf. See 1994 Trial tr. at 2363-2410; 2411-27; 1994 Sent. tr. at 10-21; 135-45. Neither expert opined that Petitioner suffered from post-traumatic stress disorder. See 1994 Trial tr. at 2396; 2403-04; 2413-14.

Dr. John Warren testified during the guilt/innocence phase of Petitioner's second trial that Petitioner had a "history of chronic depression and dependency." 1994 Trial tr. at 2396. Dr. Warren also testified that Petitioner's state of mind on the date of the offenses resulted from a variety of factors including a "long term history of being abused as a child, his Viet-Nam history, his alcohol abuse and his intoxication at the time of the events plus the problems and the interactions and the upset between he and his wife and he and his father-in-law." Id. at 2396. When questioned specifically about Petitioner's Vietnam experiences as they related to Petitioner's perception of reality at the time of the offenses, Dr. Warren was not able to diagnose Petitioner as suffering from Post-Traumatic Stress Disorder. Id. at 2403-04. He was not able to state that Petitioner was reliving a flashback or nightmare of his Vietnam experience, but stated instead that Petitioner equated the sensation of the intensity of the situation with that of his experiences in Vietnam. Id.

Dr. Lara, also testifying for Petitioner, was unable to diagnose Petitioner with Post-Traumatic Stress Disorder. Dr. Lara, testifying during the guilt/innocence phase of Petitioner's second trial, stated that Petitioner was under his care for evaluation for fourteen days at Dorothea Dix Hospital just one week after the murders were committed. See 1994 Trial tr. at 2413. After his extensive evaluation of Petitioner, Dr. Lara did not diagnose Petitioner with Post-Traumatic Stress Disorder but concluded that Petitioner suffered from "an adjustment disorder with psychotic emotional features, including both anxiety and depression features, and also a diagnosis of alcohol abuse history and a diagnosis of a personality disorder with predominate compulsive dependant features." Id. at 2414. Indeed, at Petitioner's first trial, Dr. Lara was specifically questioned by then District Attorney Thurman Hampton regarding the possibility that Petitioner suffered from Post-Traumatic Stress Disorder, and Dr. Lara concluded that Petitioner did not. See 1988 Trial tr. at 693-94.

The record shows that Petitioner's trial counsel at his second trial were thorough and diligent in developing evidence regarding Petitioner's mental status. Counsel presented evidence of Petitioner's mental status in the guilt/innocence phase of the trial and in the sentencing phase. Petitioner has presented no evidence to support an allegation that he suffered from Post-Traumatic Stress Disorder at the time of his crimes.²

2 An affidavit of Dr. Jerry W. Noble recites that evidence of post-traumatic syndrome would be highly relevant to issues of psychological defense and mitigation. However, Dr. Noble does not provide such a diagnosis for Petitioner. See Respondent's Answer, Ex. A, Tab 11, Noble Aff. ¶ 36.

Petitioner has failed to show either incompetence of counsel or prejudice. This Court cannot find that the resolution of this issue by the state court was contrary to or involved an unreasonable application of clearly established federal law. Petitioner's Claim VII(B) is without merit.

C. Failure to Object to Alleged Violations of Speedy Trial Right.

In Claim VII(C), Petitioner asserts that attorneys Samuel Ervin and Donald Cowan were ineffective for failing to assert Petitioner's right to a speedy trial. Upon Petitioner's direct appeal, Petitioner was in a position to adequately raise the matters raised in this claim, but he did not do so. Accordingly, the MAR court dismissed this claim on procedural grounds pursuant to N.C. Gen. Stat. § 15A-1419(a)(3), and, alternatively, ruled that the claim lacked merit. A federal court may reach the substantive merits of a claim that has been procedurally barred from review in state post-conviction proceedings if, and only if: (1) the petitioner can show cause for the default and actual prejudice or (2) the petitioner can show that failure to review by the federal court will result in a fundamental miscarriage of justice. See Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977). This Court's review of the record reveals that Petitioner cannot make any of these showings.

The chronology of events underlying Petitioner's speedy trial claim is as follows: Petitioner was arrested on March 4, 1988, the day of the murders. The State called the cases against Petitioner for trial on October 17, 1988. Petitioner was convicted of both counts of first-degree murder and sentenced to death on October 25, 1988. Petitioner entered oral notice of appeal on that same date. Petitioner's first trial thus commenced a mere seven and one-half months after the commission of the murders. On July 17, 1992, the North Carolina Supreme Court reversed Petitioner's convictions on the grounds that a juror had been improperly questioned outside Petitioner's presence. The court ordered a new trial. See State v. Boyd, 332 N.C. 101 (1992).

With regard to the second trial, pretrial motions were heard beginning February 28, 1994. The second trial began on June 13, 1994. Thus, Petitioner's second trial commenced one year and eight months after the order for a new trial was issued by the North Carolina Supreme Court, hi Petitioner's MAR, Petitioner conceded that the reason for the "delay" in the second trial "had nothing to do with misconduct of the prosecution or the State, except to the extent that the State opposed his motion for [psychological] assistance." MAR ¶ 46. Petitioner claims that although his trial counsel did assert his right to a speedy trial before his first trial, his later trial counsel neglected to make such a motion before the second trial, subjecting Petitioner to ineffective assistance of counsel.

The United States Supreme Court's four-part balancing test for determining a claim of violation of a defendant's right to a speedy trial includes "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530 (1972) (defendant's Sixth Amendment right to speedy trial was not violated even though there was more than four years delay between arrest and trial). Although "[t]he length of delay is to some extent a triggering mechanism," the "length of the delay is not per se determinative of whether a speedy trial violation has occurred." Id. at 530; State v. Webster, 337 N.C. 674, 678 (1994). The length of delay factor must take into account the complexity of the crime being prosecuted. See Barker, 407 U.S. at 531. In regard to the reason for the delay, the "defendant has the burden of showing that the reason for the delay was the neglect or willfulness of the prosecution." Webster, 337 N.C. at 679. The defendant must also assert his right to a speedy trial. See Barker, 407 U.S. at 531. "Although failure to demand a speedy trial does not constitute a waiver of that right, it is a factor to be considered." Webster, 337 N.C. at 680. The defendant must have also suffered some prejudice related to the delay. See Barker, 407 U.S. at 532.

The MAR court determined that Petitioner's speedy trial right was not violated. The MAR court concluded that Petitioner had been charged and convicted of two counts of first-degree capital murder and that a large portion of the time between his arrest and the commencement of his second trial was consumed by the prosecution of his ultimately successful direct appeal to the North Carolina Supreme Court. Petitioner failed to show that the "reason for the delay was the neglect or willfulness of the prosecution." See Webster, 337 N.C. at 679. Additionally, Petitioner had failed to prove any prejudice resulting from any delay. The time period before the second trial afforded Petitioner the opportunity, as a result of the trial court's ruling, to have a second mental health expert appointed to the defense team. While Petitioner claims that delay in obtaining an Ake "private" mental evaluation prejudiced Petitioner, that claim of delay is not related to the delay between Petitioner's indictment and his second trial, but is instead related to the strategic decisions of Petitioner's original trial counsel that are addressed under Claim IV, above.

Since Petitioner has failed to raise a serious claim that his right to a speedy trial was violated, Petitioner has failed to prove deficiency of counsel in raising the issue of speedy trial before his second trial. Petitioner has also failed to prove any prejudice resulting from trial counsel's failure to assert a speedy trial violation.

The Court finds no basis for setting aside the procedural default committed by Petitioner in not raising this matter on direct appeal. Petitioner has shown neither cause nor prejudice, nor any fundamental miscarriage of justice. Claim VII(C) should be dismissed.

D. Admitting the Existence of an Aggravating Circumstance Before the Jury in Closing Argument.

Petitioner contends in Claim VII(D) that trial counsel were ineffective in "admitting," without Petitioner's consent, that Petitioner's conduct was sufficient for the jury to find an aggravating factor during deliberations on sentencing. Petitioner raised this claim in his MAR and before the North Carolina Supreme Court on direct appeal. Both courts denied the claim on the merits. Specifically, the MAR court concluded that the record did not support a finding that trial counsel admitted the existence of the aggravating circumstance. Additionally, both state courts determined that, unlike the admission of guilt without the defendant's consent, admission of the existence of an aggravating circumstance without the defendant's consent would not constitute prejudice per se for purposes of determining ineffectiveness of trial counsel. See also Brown v. Dixon, 891 F.2d 490, 499 (4th Cir. 1989).

Petitioner argues that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel allegedly conceded to the jury that it should find in favor of the sole aggravating circumstance submitted to it. During closing argument of the sentencing phase, defense counsel stated:

[The prosecutor] has said, consider 10 minutes in Kenneth Boyd's life on March the 4th, 1988 and take his life. That's her argument. How many times have you heard her talk about what happened on March the 4th, 1988, and base her whole argument to you on taking Kenneth's life based on what happened in 10 minutes out of Kenneth's life?

1994 Sent.tr. at 310.

We can't take 10 minutes of a person's life and consider that as outweighing everything else they ever did, and that's what Ms. Foster is asking you to do. That's not the law, that's not just, and that's not fair.

Take the 10 minutes to find the aggravating circumstance. If you take that 10 minutes, think about all of the other evidence that you are required to consider, that you've got to consider, because it's lawful mitigating evidence in spite of what Ms. Foster says.

Id. at 344. Under the court's reading, rather than conceding the aggravating circumstance, this argument by counsel skillfully pointed the jury to a deliberation that demanded more than just review of Petitioner's actions on the night of the murders. In context, the argument of trial counsel cannot fairly be said to be an admission of the aggravating circumstances in issue.

Petitioner argues in support of this claim that his attorney's alleged concession was tantamount to a concession of guilt without his consent in violation of the Sixth Amendment. In State v. Harbison, 315 N.C. 175 (1985), the Court held that where a defendant's trial counsel, without consent from the defendant, admits the defendant's ultimate guilt to the jury, the defendant has been denied effective assistance of counsel. The North Carolina Supreme Court in State v. Walls, 342 N.C. 1, 57 (1996), has also concluded, however, that Harbison does not apply to sentencing proceedings, as opposed to guilt-innocence determinations. See also State v. Boyd, 343 N.C. at 743.

This Court determines that the state court's adjudication of this claim was not contrary to and did not involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court. See Williams v. Taylor, 529 U.S. at 412-13. Petitioner's Claim VII(D) is without merit.

CLAIM VIII

As Claim VTH, Petitioner asserts that the trial court erred by allowing the prosecutor to present closing arguments which were calculated to inflame the jury with passion and prejudice, including references to the Bible, in violation of Petitioner's rights guaranteed by the Sixth and Fourteenth Amendments. The MAR court held that Petitioner, upon his direct appeal, was in a position to adequately raise the matters raised in this claim, but did not do so. Accordingly, the MAR court dismissed this claim on procedural grounds pursuant to N.C. Gen. Stat. § 15A-1419(a)(3). A federal court may reach the substantive merits of a claim that has been procedurally barred from review in state proceedings if, and only if: (1) the petitioner can show cause for the default and actual prejudice or (2) the petitioner can show that failure to review by the federal court will result in a fundamental miscarriage of justice. See Wainwright v. Sykes, 433 U.S. at 90-91. Petitioner has not made any of these showings.

Prosecutor Belinda Foster argued to the jury that while she was not certain that the defense would, during its turn in argument, argue the Biblical tenet "Thou shall not kill," she wanted the jury to be aware that other Biblical references were consistent with the imposition of the death penalty.

Her argument on this point went as follows:

And I don't know, ladies and gentlemen, that they will get up here and quote out of the good book here, "Thou shalt not kill," but what I state to you, ladies and gentlemen, is that which is found in the Book of Matthew, "Ye have heard that it was said by them of old time, thou shalt not kill, and whosoever shall kill shall be in danger of the judgment." And the judgment in this case, ladies and gentlemen, is death.

And from the Book of Numbers, ladies and gentlemen, "If he smite him with an instrument of iron . . . so that he dies, he is a murderer. The murderer shall surely be put to death. . . . And if he smite him with throwing the stone wherewith he may die and he die, he is a murderer. The murderer shall surely be put to death. . . . Or if he smite him with a hand weapon of wood wherewith he may die and he die, he is a murderer. The murderer shall surely be put to death. . . ." Ladies and gentlemen . . . justice requires and the evidence supports a verdict, a recommendation of death for Kenneth Boyd for the senseless deaths of Dillard Curry and Julie Curry Boyd.

1994 Sent. tr. at 308-09 (objections and rulings deleted).

As anticipated by the prosecutor, Petitioner's trial counsel did incorporate Biblical references in their final argument. Attorney Ervin argued as follows:

And Ms. Foster read to you from the Bible. I brought mine, but I really hadn't planned to do much reading to you. She read to you, "An eye for an eye" from the Sermon on the Mount. "You've heard that it was said an eye for an eye and a tooth for a tooth, but I say to you do not resist one as evil, but if anyone strikes you on the right cheek, turn to him the other also. And if anyone would see you and take your cloak, let him have your cloak as well. And if anyone forces you to go one mile, go with him two miles. Give to him who begs from you and to not refuse him who would borrow from you."

Id. at 346-47. Indeed, attorney Ervin opened the defense argument with a Biblical quotation: "I call heaven to earth to witness against you this day, that I had set before you life and death, blessing and curse, therefore, choose life." Id. at 323.

After closing argument, the trial court instructed the jury "to decide from the evidence — from all the evidence presented in both phases what the facts are. You must then apply the law that I'm about to give you concerning punishment as to those facts. It's absolutely necessary that you understand and apply the law as I give it to you and not as you think it is or as you might like it to be." Id. at 381-82.

Even though the prosecutor's closing argument carried, in the brief excerpt under review here, an obvious religious and moral overlay, it was not error under North Carolina law to make such an argument in a capital case. See North Carolina v. Barren, 343 N.C. 164 (1996) (prosecutor's closing argument that contained Biblical references was not reversible error and North Carolina has upheld such arguments as long as argument is not that State law is divinely inspired or that law officers are divinely ordained); McDougall v. Dixon, 921 F.2d 518, 539, 535 (4111 Cir. 1990) (in a death penalty case, it was a "conventional argument" to discuss with the jury "the irrevocability of the death penalty verdict, the mitigating factors in favor of the defendant, Biblical passages in support of mercy, other arguments indicating that the death penalty was not a proper solution for McDougall."). Courts have held that Biblical references in a prosecutor's argument are not per se inappropriate, especially when those arguments are made in anticipation of Biblical arguments by the defense. See State v. Rose, 339 N.C. 172, 203 (1994). A prosecutor's argument that "the death penalty is not inconsistent with the Bible," merely anticipating a defense reference to the tenet "Thou shalt not kill" does not require the Court's intervention ex mero moto. State v. Hunt, 323 N.C. 407, 427 (1988). Biblical references are only improper when they attempt to suggest that the powers of government officials are ordained by God such that the jurors' resistance of a government sanctioned penalty is a resistance of God or that state law is divinely inspired. See State v. Moose, 310 N.C. 482 (1984); State v. Oliver, 309 N.C. 326 (1983).

Petitioner has not shown that the state court's application of federal law was unreasonable in any sense. In Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998), cert. denied, 525 U.S. 1150 (1999), the Fourth Circuit held that the due process rights of the defendant were not violated, under the circumstances of that case, where the prosecutor included Biblical references during closing argument. The defendant's counsel had also made Biblical argument, and therefore the prosecutor's comments were "invited" and simply balanced the scale. Moreover, the trial judge had specifically instructed the jury to rely on the evidence in the case, not the argument of counsel. In the case at bar, the Biblical references made by the prosecutor and defense counsel were in similar balance, the arguments in question were isolated and certainly did not predominate. The state court reasonably concluded that Petitioner was not deprived of a fair trial.

This Court finds no basis for setting aside the procedural default committed by Petitioner in not raising this matter on direct appeal to the Supreme Court of North Carolina. Petitioner has shown neither cause nor prejudice, nor any fundamental miscarriage of justice. Claim VET should be dismissed.

CLAIM IX

In his ninth claim, Petitioner asserts that the trial court violated his right to due process of law by allowing the jury to consider the aggravating circumstance that the murders for which Petitioner was convicted were part of a course of conduct wherein Petitioner committed other violent crimes against other persons. See N.C. Gen. Stat. § 15A-2000(e)(11). Petitioner contends that this aggravating circumstance is unconstitutionally vague, overbroad, and indefinite. Alternatively, Petitioner argues that the aggravating circumstance was not supported by the evidence in the case. The North Carolina Supreme Court denied this claim and held the trial court properly submitted this aggravating circumstance to the jury. The Court held the § 15A-2000(e)(11) aggravating circumstance itself does not violate due process by reason of unconstitutional vagueness and that the evidence was sufficient to support its submission to the jury in this case. See Boyd, 343 N.C. at 719; see also State v. Williams, 305 N.C. 656, 685 (1982).

The State presented overwhelming evidence showing that after Petitioner fatally shot Dillard Curry, he fired his weapon at Julie Boyd, intending to kill her. See 1994 Trial tr. at 1798-1800. The jury, by returning guilty verdicts of first-degree murder for each killing, found beyond a reasonable doubt that Petitioner had committed the two murders. The North Carolina Supreme Court held:

[U]nder similar circumstances that the submission of one killing as an aggravating circumstance for another murder under the [§ 15A-2000] (e) (11) aggravating circumstance is correct and does not violate due process of law or double jeopardy. Thus, the trial court correctly allowed the jury to consider the murder of Dillard Curry as the crime of violence to support the (e)(11) aggravating circumstance in sentencing [Petitioner] for the murder of Julie Boyd. Likewise, the trial court was correct to allow the jury to consider the murder of Julie Boyd as the crime of violence that supported the (e)(11) aggravator in sentencing [Petitioner] for the murder of Dillard Curry.

Boyd, 343 N.C. at 720 (citations omitted). The trial court properly submitted the aggravating circumstance that each of the murders for which Petitioner stood convicted was part of a course of conduct which included the commission of other crimes of violence against another person. Id.

Petitioner argues, however, that the trial court did not rely solely on the separate killings as the "other crimes of violence." He contends that the trial court improperly instructed the jury that it could consider an alleged and uncharged assault on Craig Curry as that other crime. Petitioner argues that relying on this alleged assault was error in that a prerequisite to the submission of the course of conduct circumstance is that Petitioner be charged with the other crime of violence. The Court disagrees with Petitioner.

N.C. Gen. Stat. § 15A-2000(e)(11) does not require that Petitioner be charged or convicted of the "other crimes of violence" before the aggravating circumstance may be submitted. Unlike other aggravating circumstances that require a conviction, the course of conduct aggravating circumstance is supported not by convictions, but crimes. In State v. Cummings, 332 N.C. 487, 507-12 (1992), the court held the import of the § 15A-2000(e)(11) aggravating circumstance is not that Petitioner has been charged or convicted of such crimes, but that such crimes connect with the capital murder, whether temporally, by modus operandi or motivation, or by some common scheme or pattern. In the case at bar, the State presented evidence that immediately after fatally shooting Dillard Curry and Julie Boyd, Petitioner turned his weapon toward Craig Curry. Curry testified that while Petitioner reloaded his weapon, Petitioner yelled to him, "come on up here, Craig, I am going to kill you too." 1994 Trial tr. at 2159-60; 2191. Petitioner's statement to law enforcement officers, read at trial, was that "I went back out the same door that I came in and I saw a big guy pointing a gun at me. I think this was Craig Curry, Julie's brother. I shot at him three or four times as I was running toward the woods. Then I laid down in the woods and reloaded my gun with what bullets I had left." 1994 Trial tr. at 1938-41.

This trial testimony constituted substantial evidence that Petitioner assaulted Craig Curry with a deadly weapon with the intent to kill. Thus, the trial court did not err by instructing the jury that it could find as an aggravating circumstance that Petitioner committed the crime of assault with a deadly weapon with the intent to kill as part of the same course of conduct as the killing of the murder victims.

Under § 2254(d)(1), a writ of habeas corpus maybe issued if the state court adjudication resulted in a decision that was contrary to or involved an unreasonable application of clearly established Federal law as determined by the United States Supreme Court. See Williams v. Taylor, 529 U.S. at 412-13. Petitioner has argued for a general due process violation as a result of the State's submission of the aggravator in question, but the Court finds no fundamental unfairness. With respect to aggravating factors, the Supreme Court has invalidated those which "authorize" a jury to draw adverse inferences from conduct that is constitutionally protected." Zant v. Stephens, 462 U.S. 862, 885 (1983). The aggravating circumstance at issue here clearly does not run afoul of Zant.

This Court finds the state court's decision was not contrary to and did not involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court. The Court finds Petitioner's Claim IX to be without merit.

CLAIMS X-XII

In his Reply to Respondent's Answer, Petitioner abandoned and withdrew Claims X, XI, and XII. See Pleading No. 22 at 33. Accordingly the Court does not address these claims but will recommend that Claims X, XI, and XII be dismissed.

CLAIM XIII

In Claim XIII, Petitioner asserts that trial counsel were ineffective for failing to present evidence of Petitioner's alleged lack of significant criminal history in support of a statutory mitigating circumstance. The MAR court held this claim meritless. In accord with the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984), the court concluded that Petitioner failed to show either a deficiency of counsel or prejudice resulting therefrom. See MAR Order ¶ 155. This Court finds that the MAR court's findings and conclusion represent a reasonable application of federal law.

Petitioner had the opportunity to submit evidence regarding a lack of significant criminal history as a statutory mitigating circumstance at his capital sentencing hearing. See N.C. Gen. Stat. § 15A-2000(f)(1). As the defense evidence at sentencing closed, the trial court specifically invited counsel to re-open the defense presentation in order to present evidence of any lack of significant criminal history. See 1994 Sent. tr. at 171-72. Trial counsel intentionally declined the trial court's invitation, however, stating that the "nonintroduction of [Petitioner's] record was not an omission." Id. The trial court responded with an acknowledgment that trial counsel "tried too good of a case to let that slip up." Id.

The MAR court concluded that trial counsel's decision not to introduce evidence regarding Petitioner's criminal history was a tactical decision. See Respondent's Answer, Ex. A, Tab 13, MAR Order ¶ 153. The MAR court wrote:

[Petitioner] has failed to prove a deficiency of counsel. [Petitioner's] counsel intentionally did not submit evidence in support of the (f)(1) mitigating circumstance [lack of significant criminal history] before the jury. Yet [Petitioner's] counsel was allowed to argue [Petitioner's] lack of criminal history without having to prove it and without having to suffer rebuttal evidence by the State. Since the record is clear that "[t]he nonintroduction of [Petitiner's] record was not an omission[,]" it is also clear that trial counsel made a strategic decision not to pursue the submission of the (f)(1) circumstance. Trial tactics made upon strategic decisions of counsel are presumed reasonable, and [Petitioner] has failed to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689-90. Additionally, the United States Supreme Court has noted that "[c]ounsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Strickland, 466 U.S. at 691 (citations omitted). Without evidence to the contrary, this Court presumes that counsel's actions are reasonable and that counsel "made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.

MAR Order ¶ 53.

On the matter of Petitioner's criminal history, Petitioner's trial attorneys were permitted to argue to the jury: "You didn't hear about a criminal record. You didn't hear about any other trouble [Petitioner] has had with the law. . . . The reason that you didn't hear it is because that's not the kind of person [Petitioner] is." 1994 Sent. tr. at 319. The tactic of not putting into evidence Petitioner's criminal record allowed defense counsel, as the MAR court found, to argue that Petitioner had no criminal record without having to support that argument with evidence and without facing rebuttal evidence by the State. The record shows, in fact, that Petitioner had a criminal record that consisted of misdemeanors and failures to pay child support.³ Yet because defense counsel had not submitted Petitioner's record into evidence, trial counsel was able to effectively argue at sentencing: "[Petitioner] wanted a family, felt that family was important, focused on his family, was willing to devote his life to his children. . . . Now, [Petitioner] may not have done everything right. . . . [Petitioner] may not have done it in the way that you would have done it in all instances, but the undisputed evidence from a succession of people . . . was that he had a good relationship with his children up to his point and he loved his children and he tried to do right." 1994 Sent. tr. at 335. The jury actually found mitigating factors submitted by defense counsel that Petitioner maintained a loving relationship with his children and provided financial assistance to them. See Issues and Recommendation as to Punishment, Mitigating Circumstances 43 and 45.

3 See Superior Court of Rockingham County Records of State v. Kenneth Lee Boyd (88 CRS 1742;88CRS1743).

This Court will not second guess the intentional strategy of two attorneys who demonstrated great ability at Petitioner's trial. They chose to be able in argument to portray Petitioner as entirely crime-free, which he was not. They knew of course, that even in the absence of an instruction on the statutory mitigating circumstance regarding criminal history, the jury remained free to consider any mitigating evidence. They pitched their argument about not "hear[ing] about a criminal record" to the jury and enjoyed the advantage of there being no rebuttal evidence. Moreover, since they had kept out the non-support convictions, they were able to strenuously argue that Petitioner was a loving father who did right by his children. Counsel's strategy was not incompetent; to the contrary, it was the product of reasoned professional advocacy.

The MAR court concluded after a review of the record, that Petitioner had failed to show incompetence or prejudice. See MAR Order ¶¶ 154-55. This Court cannot find that the MAR court's determination was contrary to or involved an unreasonable application of clearly established federal law. There is no merit to Petitioner's Claim XIII.

CLAIM XIV

Petitioner argues in Claim XIV that his appellate counsel, Harry H. Harkins, Jr., was ineffective for failing to pursue on appeal certain issues, approximately nine in number, particularly issues based on alleged incompetence of trial counsel. Review of the state court records shows, however, that in his MAR, Petitioner alleged only that his appellate counsel was ineffective for (1) failing to claim that the trial court wrongly placed the burden of production of mitigating evidence upon Petitioner, (2) failing to emphasize the District Attorney's closing argument as a reason to find trial error in failing to instruct the jury on parole eligibility, and (3) failing to assert a Sixth Amendment claim based on the original trial counsel's failure to obtain a private mental health expert in advance of the first trial. See Respondent's Answer at 26. The MAR court reasonably rejected these claims as meritless based upon Strickland and upon United States Supreme Court precedent regarding the burdens of proof and the admissibility of parole eligibility evidence.⁴ See Strickland v. Washington, 466 U.S. 668 (1984); Walton v. Arizona, 497 U.S. 639 (1990); Delo v. Lashley, 507 U.S. 272 (1993).

4 The Petition identifies eight separate claims of ineffective assistance of trial counsel that allegedly should have been raised by appellate counsel. Additionally, the Petition states that appellate counsel should have raised the claim that the trial court erred in allowing the prosecutor to influence the jury with improper arguments that included references to the Bible. See Petition ¶ 332.

On habeas review, the proper standard for evaluating a Petitioner's claim that appellate counsel was ineffective in neglecting to pursue claims on appeal is articulated in Strickland v. Washington, 466 U.S. 668 (1984), and Smith v. Murray, 477 U.S. 527, 535-36 (1986) (applying Strickland to claim of attorney error on appeal). Petitioner must first show that his counsel was objectively unreasonable in failing to find arguable issues to appeal, that is, counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them. If Petitioner succeeds in such a showing, he then has the burden of demonstrating prejudice. He must show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal. See Strickland, 466 U.S. at 694 (holding defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").

Several principles guide this Court's analysis of whether the failure to raise particular nonfrivolous issues in an appellate brief was unreasonable. The United States Supreme Court has "held that appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000); see also Jones v. Barnes, 463 U.S. 745, 752 (1983) (emphasizing the "importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review"). Indeed "`winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Murray, 477 U.S. at 536; see also Smith v. South Carolina, 882 F.2d 895, 899 (4th Cir. 1989) (counsel's failure to raise a weak constitutional claim may constitute an acceptable strategic decision designed "to avoid diverting the appellate court's attention from what [counsel] felt were stronger claims"). "[R]eviewing courts must accord appellate counsel the `presumption that [counsel] decided which issues were most likely to afford relief on appeal.'" Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000), cert. denied, 534 U.S. 830 (2001).

This Court finds that Petitioner's appellate counsel was not unreasonable or incompetent in choosing not to raise in his appellate brief the issues Petitioner identifies in Claim XIV of the Petition. For reasons shown in this opinion, Petitioner's trial attorneys were not ineffective on the grounds Petitioner asserts. Appellate counsel, in turn, was not ineffective for failing to raise on appeal claims of ineffective assistance of trial counsel that clearly had no merit.

The Court concludes that the state court's adjudication did not result in a decision contrary to or did not involve an unreasonable application of clearly established federal law. For the reasons stated above, Petitioner's Claim XIV is without merit.

CLAIM XV

In Claim XV, Petitioner asserts that the Supreme Court of North Carolina violated his federal constitutional rights during its proportionality review. Petitioner's two subclaims to Claim XV are: (A) the North Carolina Supreme Court violated Petitioner's federal constitutional rights in making its proportionality decision because it considered evidence outside the record and denied Petitioner the opportunity to rebut, deny, or explain; and (B) the North Carolina Supreme Court violated Petitioner's federal constitutional rights in making its proportionality decision because the court went outside the record, thus violating the Eighth Amendment right to meaningful appellate review. The MAR court rejected this claim as procedurally defaulted and meritless.

North Carolina's proportionality review is statutorily defined, but is not constitutionally mandated by the Eighth Amendment. See Pulley v. Harris, 465 U.S. 37, 50-51 (1984); see also Jurek v. Texas, 428 U.S. 262 (1976) (upholding a death sentence even though neither the statute nor state case-law provided for comparative proportionality review). Therefore in accordance with N.C. Gen. Stat. § 15A-2000(d)(2), the North Carolina Supreme Court during its direct review compared Petitioner's case "with other cases in which this Court has concluded that the death penalty was disproportionate." Boyd, 343 N.C. at 724 ( citing State v. McCollum, 334 N.C. 208, 240 (1993)). The court held that Petitioner's case was not "substantially similar to any case in which [the] Court has found the death penalty to be disproportionate and entered a sentence of life imprisonment." Id. The court also compared Petitioner's case "with the cases in which [the Court has] found the death penalty to be proportionate." Id. at 725 (quoting State v. McCollum, 334N.C. 208, 244 (1993)). The court concluded that "the sentences of death recommended by the jury and ordered by the trial court in the present case are not disproportionate." Boyd, 343 N.C. at 725.

Petitioner's claim is not cognizable as a constitutional claim since a proportionality review is not required under federal law. See Pulley, 465 U.S. at 50-51 (1984). Petitioner's Claim XV should be dismissed.

CLAIMS XVI AND XVII

In Claim XVI, Petitioner claims that his due process rights were violated during state post-conviction review, hi Claim XVII, Petitioner asserts specifically that his due process rights were violated by the state court's post-conviction findings of fact and conclusions of law based upon the state court record. Petitioner raised Claims XVI and XVII before the North Carolina Supreme Court in a Petition for Writ of Certiorari from the summary denial of his MAR. The North Carolina Supreme Court denied certiorari. See State v. Boyd, 343 N.C. 699 (1996).

Claims of error in state post conviction review are not cognizable on federal review. See Wright v. Angelone, 151 F.3d 151, 159 (4th Cir. 1998) (claims of error occurring in state post-conviction proceedings cannot serve as a basis for federal habeas corpus relief). There is no requirement that a state court engage in lengthy analysis that mentions every possible relevant factor or circumstance either pro or con in reaching its ultimate finding or conclusion. Id. Nor is there a requirement that the state court specifically cite United States Supreme Court cases in its opinion to fall within the scope of § 2254(d). Id. State courts may apply state decisions while conducting their analysis if the ultimate decision is not contrary to nor involves an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

Since Petitioner's Claim XVI and XVII are not cognizable in federal habeas corpus review, they should be dismissed.

CONCLUSION

For reasons set forth above, IT IS RECOMMENDED that the habeas corpus petition of Kenneth Lee Boyd be denied and dismissed. Further, IT IS ORDERED that Petitioner's Application for Leave to Conduct Discovery (Pleading No. 31) is DENIED, this Court finding no showing of good cause for discovery. And IT IS FURTHER ORDERED that Petitioner's motion to "defer ruling" (Pleading No. 34) is DENIED in view of the North Carolina Supreme Court's decision in State v. Hunt, ___ N.C. ___, No. 5A86-8, 2003 WL 21657380 (N.C. July 16, 2003).